MAINE COMPASS: Bill would protect landowners from some ‘regulatory takings’

Some government policies harm the individual to such an extent that any benefit to society as a whole becomes very hard to justify.

The issue of property rights serves as a relevant example. The Fifth Amendment ends with these words: “nor shall private property be taken for public use, without just compensation.” This sentiment is the basis for the current proposal for regulatory takings legislation before the Maine Legislature.

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The law requires the government, when exercising its power of eminent domain to take property for a public use (such as building a road), to compensate the owner for the value of the property.

Courts have extended this constitutional protection to situations where a regulation has the same effect as eminent domain. In Maine, however, your property is not considered “taken” by regulation as long as you can still have a picnic on it.

With an ever-expanding web of land use regulations and environmental laws, the question arises: What if a new law wipes out more than half the value of your property? What about 90 percent?

Should the individual have to endure such a loss for the benefit of the whole? What if that property is its owner’s only nest egg? Perhaps it is a farm, a camp, or an empty lot that someday might have been used to build a modest place to retire.

Last year, the Legislature assembled landowners and environmentalists to study the issue of so-called “regulatory takings.”

After much deliberation, they produced a report recommending steps the Legislature could take to provide landowners with some recourse when a state law or regulation diminishes the value of their property. The resulting bill, L.D. 1810, would implement the recommendations.

If enacted, it would allow a landowner to file a complaint if a state regulation decreases the value of his or her property by more than half.

If the landowner has a valid claim, then the state could compensate the owner with payment based upon a professional appraisal or with a variance to exempt the property from the new law. It is a reasonable solution to a major injustice.

Laws addressing the problem of regulatory takings are not uncommon. In fact, they are on the books in about half of U.S. states. In crafting this bill, we took many lessons from those laws.

Previous articles about this subject have conveyed misconceptions about Maine’s proposed legislation. For example, Oregon’s measure provided recourse to landowners against laws previously enacted, which opened the floodgates of litigation. That is why Maine’s bill applies only to new laws enacted after L.D. 1810.

Moreover, the bill does not apply to local ordinances, thereby allowing communities discretion. It does not apply to laws protecting public safety or health, nor does it provide relief for speculative purposes. For instance, a landowner cannot claim that they would have built a casino were it not for a new state law.

Many detractors say this bill is a lawyer’s dream — that it will spawn countless lawsuits. The facts don’t bear this out.

Consider a Florida takings law (the Bert Harris Jr. Act), passed in 1995. Only 200 landowner lawsuits have been filed, yet the Florida bill included local ordinances and had no 50 percent threshold. Any regulatory taking was potentially compensable, even if it eroded less than half of a parcel’s value.

Most of the landowner complaints stemming from the Maine bill will be settled out of court at little cost to the state. In short, L.D. 1810 is a narrow, targeted law that will not dramatically disrupt our legal or regulatory system. It will provide meaningful relief and peace of mind to countless Maine property owners.

At the public hearing for this bill, a certified organic farmer from Freeport told about her small, 10-acre farm that is her retirement nest egg and primary source of income. If the Maine Department of Environmental Protection decides that it will no longer provide a setback exemption for the vernal pool on her property, she will lose the use of half of her land.

The regulatory takings bill is an acknowledgement that she should never have to bear that kind of burden.

L.D. 1810, currently in the Judiciary Committee, is about striking a balance by compelling legislators to consider the consequences of the bills that they pass and the effect they will have on the broadest swath of Maine citizens.

The bill is a step in the right direction, and I encourage anyone who owns land or someday aspires to be a property owner to support it.

Rep. Andre Cushing, R-Hampden, is assistant leader of the House Majority Office.

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